Reconsideration Final

8/6/2019 Reconsideration Final

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IN THE UNITED STATES BANKRUPTCY COURTFOR THE DISTRICT OF DELAWARE

INRE: CASE NO.. 07-104-16 KJC, and RelatedActions, Jointly AdministeredNEW CENTURY TRS HOLDINGS, INC., et aI.,a Delaware Corporation, CHAPTER 11

Debtor. ADVERSARY PROCEEDINGCASE NO.: 09-50244RELATED CASE:USDC NDC Case No: C06-06806 SI

LESLIE MARKS,Plaintiff, MOTION FOR RECONSIDERATION OFMAY 10, 2011 ORDER and REQUEST FORCLARIFICATION OF THE 2008BLANKET ORDER FOR RELIEF FROMSTAYvs.NEW CENTURY TRS HOLDINGS, INC., a

Delaware Corporation, et al.Debtors

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE:ADVERSARY PLAINTIFF, LESLIE MARKS, in Pro Per, hereby requests this Court

reconsider its May 10, 2011 order denying Stay of Dismissal. The May 20, 2011 Orderappears to be prepared by the Trust, is biased as to favor the Trust and FAILS to address theissues raised by Marks Evidentiary Brief and FAIR and IMPARTIAL consideration ofEVIDENCE discovered at the February 28, 2011 Evidentiary Hearing (hereinafter"Evidentiary Hearing). Marks continues to suffer manifest injustice in these matters, andseeks immediate resolution by this motion.

In In re Stewart, 280 B.R. 268, 287 (Bankr.M.D. Fla. 2001), stated that a motion forreconsideration should "demonstrate why the court should reexamine its prior decision, and'set forth facts or law of a strongly convincing nature to induce the court to reverse its priordecision." In re Envirocon Int'l Corp., 218 B.R 978, 979 (M.D. Fla. 1998) (citing Cover v.

1REQUEST FOR RECONSIDERA nON OF MAY 20, 2011 ORDER


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Wal-Mart Stores, Inc., 148 F.R.D. 294 (M.D. Fla. 1993.Furthermore, a motion for reconsideration should be based on one of three grounds:

1) an intervening change in controlling law; 2) the availability of new evidence; or 3) the needto correct clear and manifest injustice. See, In re Envirocon Int'l Corp., 218 B.R. at 979(citing Kern-Tulare Water District v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal.1986. Here Marks seeks to correct CLEAR manifest injustice in these matters.

Extrinsic fraud occurs when a party is deprived of the opportunity to present his claimor defense to the court; where he was kept ignorant or, other than from his own negligence,fraudulently prevented from fully participating in the proceeding. (Sporn v. Home Depot USA,Inc. (2005) 126 Cal.App.4th 1294, 1300.) Marks here was not advised of the 2008 blanketorder of relief from stay, prior to the evidentiary hearing OR in 2009 when Marks filed heradversary complaint. This failure resulted in SEVERAL years of litigating matters that shouldhave reasonably been resolved in 2007. The Trust FAILED to provide Marks with thisinformation and as Marks properly alleges, the settlement agreement was based uponfraudulent statement of the Trust and its Counsel.

Extrinsic mistake involves the excusable neglect of a party. [When this neglect resultsin an unjust judgment, without a fair adversary hearing, and the basis for equitable relief ispresent, this is extrinsic mistake. (Heyman v. Franchise Mortgage Acceptance Corp. (2003)107 Cal.App.4th 921, 926.) To set aside a judgment based on extrinsic fraud or extrinsicmistake, the moving party must satisfy three elements: "First, the defaulted party mustdemonstrate that it has a meritorious case. Secondly, the party seeking to set aside thedefault must articulate a satisfactory excuse for not presenting a defense to the originalaction. Lastly, the moving party must demonstrate diligence in seeking to set aside thedefault once it had been discovered." (Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148. Marks does so here and continues to suffer manifest injustice in these proceedings.

This motion is based on evidence already submitted for review, evidence discovery atthe Evidentiary Hearing and requests clarification of this of items in this Court's 2008 Blanket

2REQUEST FOR RECONSIDERATION OF MAY 20, 2011 ORDER


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Order for relief from Stay. Specifically, because failure to reconsider this matter will result inmanifest injustice to Marks.

THE MAY 20,2011 ORDER FAILS TO ADDRESS THE SUBSTANCE OF THEEVIDENTIARY HEARING1. THE TRO REQUEST WAS DEEMED MOOT AND NOT CONSIDERED AT THEEVIDENTIARY HEARINGEven though Marks serviced all parties, including the California parties regarding the

fraudulent foreclosure sale, this Court failed to protect Marks and her family from furtherlitigation in the form of a Temporary Restraining Order, as to the Home 123 Mortgage towhich this Court has sole jurisdiction. As a result, Marks had to commence withADDITIONAL litigation in California with parties who purchased her property with a"handwritten" receipt; references a loan to which Marks has NO obligation; references a loanwhich is NOT related to Marks' Deed of Trust; references a loan to which Marks has NOobligation; based upon fraudulent assignments and substitution of trustee among many boldand glaring defects. Additionally, purchasing a property which was heavily in litigation,Eikenberry's clients should simply received a refund from whomever they purchased theproperty from. Eikenberry's clients did not do that because NO MONIES WEREEXCHANGED for Marks property, as is clearly evidenced by the 'handwritten receipt". SoMr. Eikenberry and his clients embarked on a robust quest to STEAL Marks by continuedabuse of the judicial system, and fraud upon the court. Attorney Eikenberry LOST his motionfor summary judgement against Marks. A jury did NOT award Eikenberry's clients Marks'home, yet Marks REMAINS in litigation for 6 (SIX) years now. The TRO was NOT discussedat all at the evidentiary hearing, as the Court's failure to protect Marks caused her to sufferand continue to suffer manifest injustice defending her home against parties who CLEARLYhave no standing to seek recovery from her. Since Marks requested TRO was NOT timelyGRANTED, it was off the table by the time of the Evidentiary Hearing.

3REQUEST FOR RECONSIDERATION OF MAY 20, 20]] ORDER


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2. MARKS CLAIMS WERE MISREPRESENTED AND NOT ADJUDICATED IN THEMAY 10,2011 ORDERMarks represented to the Court at the Evidentiary Hearing, which the Trust now refers

to as a "trial" (no trial was conducted in this matter) that the Trust, specifically AttorneyIndelicato, stated as a provision of the Settlement Agreement that he would provide evidencefor Marks to pursue the other banks. Attorney Indelicato stated that the Trust could not quiettitle and had no power to do so. Marks request and received the Sworn Statement of AlanJacobs as part of that Settlement, stating that Marks mortgage was "satisfied" and that theTrust had no interest in Marks loan and that Marks had NO OBLIGATION TO THE TRUST.Marks further represented evidence that the Trust did NOT correctly report the status on hercredit report and BREACHED the Settlement Agreement by failing to 1. Deem the 2006mortgage as "SATISFIED" or "PAID IN FULL"; and 2. The Trust FAILED to provide Markswith her original mortgage stamped "PAID IN FULL" and issuing a new Note naming the newbeneficiary.

In cross-examination at the Evidentiary Hearing, Attorney Indelicato testified underoath that the Trust HAD NO EVIDENCE of transfer and that Marks should "take the WORDof an officer of the Court" that the transfer was in fact done. Marks, to date, cannot find caselaw, state law, federal law that supports that the WORD of an officer of the Court is sufficientto verify, validate, effect of substantiate a lawful transfer of real estate mortgages. Markscontinues to suffer manifest injustice as this issue was not addressed by the court.

Furthermore, the Trustee, Alan Jacobs, stated under oath that Marks mortgage wasNOT one of the four mortgages that he administered and had no knowledge of theadministering of Marks mortgage, yet Trustee Jacobs prepared and signed a swornstatement of the progression of Marks loans. As such, Marks continues to suffer ManifestInjustice as the Trustee's sworn statement cannot be accurate to the extent it fails to provideevidence of the transfer from Home 123 to ANY entity.

As such, it can only be deemed that Marks 2006 note was NOT transferred to anyentity. It can only be determined that Marks 2006 Note was "satisfied" in 2007 and FAILING



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to show evidence of transfer, this is CLEAR evidence that Marks could NOT have been indefault in 2010 on a Note Satisfied in 2007.

As the Trust through its Counsel Indelicato and its Trustee claims to have NOINTEREST in Marks note, this Court has jurisdiction and the power to quiet title - withoutprejudicing the Trust in any way. The party to whom the Note has been transferred, shouldthen pursue Marks in the appropriate venue. Marks continues to suffer manifest injustice inthese matters.

Marks further provided evidence that New Century and Home 123 have ACTIVEwebsites and ARE in fact conducting business in California in violation of the Department ofCorporations order that New Century and Home 123 can no longer do Mortgage Business inthe State of California. Marks presented evidence of same to this court. Marks continues tosuffer Manifest Injustice in these matters.

A short time AFTER the evidentiary hearing, Marks discovered the 2008 BlanketOrder granting Relief from Stay to any party with mortgages bearing the name of the debtorsor any of its subsidiaries. Marks subsequently provided these documents to the Court asevidence. Failure to make determinations on the SPECIFIC issues raised by Marks at theEvidentiary Hearing and immediately subsequent to the Evidentiary Hearing is clear evidencethat Marks continues to suffer manifest injustice in these matters.

The promissory note and the Deed of Trust are inseparable. "The note and themortgage are inseparable, the former is essential, the later as an incident. Anassignment of the note carries the mortgage (deed of trust) with it, while anassignment of the latter alone is a nullity." Carpenter v. Longan, 83 u.S. 271,274(1872); accord Henley v. Hotaling, 41 Cal 22, 28 (1871); Seidell v. Tuxedo LandCo., 216 Cal. 165, 170 (1932); Cal. Civ. Code 2936.This is nothing more than a fraudulent conveyance, and this court failed to address thispertinent issue, resulting in Marks suffering manifest injustice. These facts, properly broughtto bar, were not addressed. Marks continues to suffer manifest injustice should these mattersnot be fairly and impartially addressed and adjudicated.

5REQUEST FOR RECONSIDERA nON OF MAY 20, 2011 ORDER


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The Trustee represented to the Court that it did not have to power to clear, satisfy oravoid the 2006 mortgagewhich Marks challenges. See 11U.S.C. 547(b)(4) (providing thata trustee may avoid any transfer made by a debtor on or within 90 days before the date offiling (or up to one year before filing if made to an insider) if the transfer was a preference);11 U.S.C. 548 (providing that a trustee may avoid any transfer made or obligation incurredby a debtor upon or within two years before filing in the case of a fraudulent transfer); 11U.S.C. 544 (permitting a trustee to enforce avoidance rights under state law); see also 5Collier on Bankruptcy, PP 547.03[6], 548.03; Section 6 infra. Carr continues to suffermanifest injustice in these matters. Even the California courts will not have the power toavoid athe lien which is in the control of the Delaware Bankruptcy Trustee. Furthermore, theTrust confirmed that it did in fact, transfer Marks mortgage within 90 days of filing forprotection of the automatic stay, which Marks properly alleged, in violation of Bankruptcy law.This manifest injustice will cause Marks to lose her home based upon abuse of the judicialprocess and fraud upon the Court perpetrated by the Trust.

At the May 10, 2011 Omnibus Hearing, the Court advised that any party seekingclarification of the 2008 Blanket Relief from Stay order, it make a motion to the Court. Marksdoes so here. As is clear, a Hawaii District Court Judge made the same determination thatMarks did in the interpretation of the 2008 Order. The May 10, 2011 Order of this Court doesnot offer explanation or consideration of the merits of Mark's claims in this regard. Markscontinues to suffer manifest injustice in these matters.NEW CENTURY FINANCIAL (TRS HOLDINGS) IS USING THE BANKRUPTCY AS AVEHICLE FOR CONCEALMENT OF ASSETS (THE LOANS NEVER LEFT NEWCENTURY MORTGAGE, NEW CENTURY CAPITAL CORP, HOME123 CORP.) THETRUST FAILS TO PROVIDE EVIDENCEOF SUCH LAWFUL TRANSFER.The issues properly brought at the Evidentiary Hearing must be addressed and a finaldetermination must be rendered by this Honorable Court. Specifically, Marks properlybrought to bar the above issues and requested the Court take judicial notice of same:

There is no valid explanation of why Home123 Corporation is executing and recordingan assignment four (4) years AFTER Marks note was "satisfied" and in clear violation of the



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Cease and Desist Order of the California Department of Corporations. 195FTC v. USABevs., Inc., 2005 U.S. Dist. LEXIS 39075 at *24-25 (S.D.Fla. 2005) (U.S.M.J report adoptedby U.S.D.J. at 2005 U.S. Dist. LEXIS 39026) ("The scope of the monetary liability forDefendants' unlawful conduct is enormous and provides considerable motivation fordefendants to place their assets beyond the Court's reach"). Furthermore, the two monthDELAY in issuing an order that FAILS to ACCURATELY address the matters brought andevidence discovered at the Evidentiary Hearing further prejudices Marks. These delays werean attempt to allow time for a WRONGFUL foreclosure to take place. Marks continues tosuffer manifest injustice in these matters.

Finally, Marks believes that even if the wrongful foreclosure takes place, when NewCentury and Home 123 complete their bankruptcy, as they are ACTIVELY continuing to dobusiness they will bring the SAME allegations Marks brings regarding fraudulentconvenyances and some 6 (six) years later claim Marks then OWES money on the 2006Note. That note has not been resolved and the TRUST remains the beneficiary. Thesematters clearly result and show that Marks continues to suffer manifest injustice in thesematters.

CONCLUSIONMarks continues to suffer manifest injustice in these matters. Attorney Indelicato

appeared angry at the May Omnibus Hearing and stated he takes the allegations of fraudvery seriously. It was also stated that Marks "better get an attorney". Marks takes theTHEFT of her home very seriously as well. Marks takes the misrepresentations of the Trustand the DELAY in these proceedings very seriously.

Marks does NOT need an attorney to review documents in the Alameda CountyRecorder's office that CLEARLY reflect NO transfer from Home 123 to ANY entity prior to2007, as evidenced by the SWORN statement of ALAN JACOBS.

Marks does NOT need an member of the BAR to address the CLEAR issues ofFRAUD as properly alleged by Marks in the Evidentiary Hearing and by the pleadings on the



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docket which she properly brought to bar.Marks does NOT need an attorney to interpret documents that are CLEARLY

fraudulent on their face and in CLEAR violation of LAW.Marks does NOT need an attorney to question why she is still litigating these matters

after what is now 6 (SIX) years without reasonable, fair or just resolution.Marks does NOT need an attorney to explain that she did NOT buy a home she could

not afford. Marks did NOT take out a second and third mortgages. Marks FOLLOWED theadvice of representatives of New Century giving her BAD advice to satisfy their own greed,inflate her home value for their OWN monetary benefit and now, leave Marks and herdisabled son HOMELESS. Manifest injustice is CLEAR and irrefutable in these matters.Marks does NOT need an attorney to argue that New Century set out to DEFRAUD acertain group of people including minorities, the handicapped and the elderly with it mortgageproducts that were CREATED with the intention to cause the borrower to FAIL and result inunlawful andwrongful foreclosure.

Marks does NOT need an attorney to argue why a HANDWRITTEN receipt that doesnot reflect Marks primary residence is NOT evidence of purchase for value.

Marks does NOT need an attorney to argue that ABSENT timely recorded documentsin the recorder's office - there is NO evidence of lawful transfer.

Marks does NOT need an attorney to argue why she continues to suffer manifestinjustice at the hands of the Trust and their Counsel based upon the evidence provided,sworn testimony and documents clearly fraudulent on their face.

Marks does NOT need an attorney to argue that these acts have GREATLYcontributed to the worldwide economic collapse, as she properly argued at bar since 2006.

Marks DOES need the issues brought to bar fairly and impartially adjudicatedWITHOUT PREJUDICE to Marks. Marks DOES need a judge to be FAIR AND IMPARTIALas the oath of office taken suggests that matters properly brought to bar should be treatedfairly and impartially. None of the issues brought to bar at the evidentiary hearing have been



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addressed and fairly and impartially adjudicated in this matter as Marks properly alleges.When a party brings a matter to bar, at the VERY LEAST, fair and impartial

adjudication of the issues before the Court should be heard. Marks has not been deemedvextatious. Marks claims have NOT been deemed in valid. Marks evidence is CLEAR on itsface. Six years of Marks life have been STOLEN without relief, and Marks CONTINUES tosuffer manifest injustice in these matters.

That said, Marks respectfully requests this Court reconsider its May 10, 2011 orderand render a ruling that addresses the issues brought to bar fairly, justly and impartially.

DATED: May 16, 2010 Respectfully Submitted,


Reconsideration Final

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